United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK, UNITED STATES DISTRICT JUDGE.
matter is before me on the government's motion to
consolidate two cases for trial - United States v.
Wittenmyer, case number 3:14-cr-89, and United
States v. Henderson, case number 3:16-cr-285.
(Henderson, Doc. No. 13). The parties have fully
briefed the issue. (Henderson, Doc. Nos. 13, 14,
20-22). For the reasons that follow, I find these cases
unsuitable for consolidation.
February 18, 2014, the government filed a criminal complaint
against Defendant Arvel Ray Henderson, II and co-defendant
Mark Wittenmyer, alleging money laundering in violation of 18
U.S.C. § 1956(a)(1)(B)(i). (Wittenmyer, Doc.
No. 1). Wittenmyer was indicted on March 11, 2014, on charges
of conspiracy to commit wire fraud, wire fraud, and money
laundering. (Wittenmyer, Doc. No. 13). Henderson was
not indicted at that time. (Id.). The government
filed a superseding indictment on May 14, 2014, charging four
additional individuals and adding numerous charges.
(Wittenmyer, Doc. No. 40). Again, Henderson was not
named in the indictment. (Id.). On May 29, 2015, the
government moved to dismiss the complaint against Henderson.
(Wittenmyer, Doc. No. 23). The motion was granted on
June 1, 2015. (Wittenmyer, Doc. No. 24).
3, 2015, the government filed a second superseding indictment
as to all the defendants, this time charging Henderson with
one count of conspiracy to commit money laundering and five
counts of engaging in monetary transactions in property
derived from specified unlawful activity.
(Wittenmyer, Doc. No. 103). All defendants except
Henderson have since pled guilty or been voluntarily
dismissed by the government.
September 6, 2016, the government indicted Henderson in a
separate action, charging one count of theft of public money
and two counts of bankruptcy fraud. (Henderson, Doc.
No. 1). The government filed a superseding indictment on
January 30, 2017, charging one count theft of public money,
one count concealment of bankruptcy assets, and one count
bankruptcy fraud. (Henderson, Doc. No. 18).
Federal Rule of Criminal Procedure 13, I “may order
that separate cases be tried together as though brought in a
single indictment or information if all offenses and all
defendants could have been joined in a single indictment or
information.” Separate offenses may be charged in the
same indictment if those offenses “are of the same or
similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a
common scheme or plan.” Fed. R. Crim. P. 8(a). Joinder
under Rule 8(a) is permissive, and “[t]o the extent
that it is consistent with providing the defendant with a
fair trial, the Rule is to be construed liberally to promote
the goals of trial convenience and judicial
efficiency.” United States v. Wirsing, 719
F.2d 859, 862-63 (6th Cir. 1983).
propriety of joinder is “determined by the allegations
on the face of the indictment.” United States v.
Chavis, 296 F.3d 450, 456-57 (6th Cir. 2002). If the
counts to be joined are “logically related, and there
is a large area of overlapping proof, joinder is
appropriate.” United States v. Graham, 275
F.3d 490, 512 (6th Cir. 2001) (citing Wirsing, 719
F.2d at 863) (internal quotation marks omitted).
government asks that I consolidate these two cases, claiming
the charges are both “of the same or similar
character” and “parts of a common scheme or
plan.” (Henderson, Doc. No. 20 at 1);
see Fed. R. Crim. P. 8(a). The government also
claims Henderson will suffer no prejudice should 1
consolidate these cases. (Henderson, Doc. No. 20 at
argues the cases cannot be joined under Rule 8(a), because
the individual charges allege unrelated transactions, and the
government need not prove one charge in order to prove any
other charge. (Henderson, Doc. No. 21 at 5-6).
Henderson further argues he will face prejudice if the cases
are consolidated. (Id. at 2).
impermissible the consolidation of these two cases. It is
true, as the government contends, that Henderson's
business account, PNC account 4617, “is the focal point
of his [alleged] conduct” in Wittenmyer.
(Henderson, Doc. No. 13 at 7). The government
alleges Henderson used his account 4617 to receive separate
wire transfers of $499, 980 and $130, 000 in fraud proceeds
in furtherance of the money laundering conspiracy.
(Wittenmyer, Doc. No. 103 at ¶¶ 96,
& 98). The government then alleges Henderson withdrew or
spent money from this account for his and Wittenmyer's
use on six different occasions. (Id. at ¶¶
99-101, 103-04, & 106). Finally, the government alleges
Henderson transferred $23, 000 from account 4617 into another
of his accounts, PNC account 8488, and then transferred $50,
000 from account 8488 into his SunTrust account 4724.
(Id. at ¶ 106).
overlap between these charges and those brought in the
Henderson indictment is small. Count one of the
Henderson indictment, theft of public money, arises
out of an alleged scheme to defraud the United States
Department of Housing and Urban Development.
(Henderson, Doc. No. 18 at ¶¶ 7-16). The
government alleges no connection between this scheme and the
money-laundering scheme in Wittenmyer. The only